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N.J.'s Gay Conversion Therapy Ban Stands: 3rd Cir.

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By William Peacock, Esq. on September 12, 2014 12:57 PM

Sexual orientation change efforts (SOCE), also known as conversion therapy or ex-gay therapy, is still illegal in New Jersey, the second U.S. state to ban the controversial treatment. The Third Circuit Court of Appeals, borrowing heavily from the Ninth Circuit's consideration of California's similar ban, upheld Assembly Bill A3371 yesterday.

The Third Circuit held that while the therapy was speech (as opposed to conduct), it was professional speech, a form of speech offered fewer protections under the First Amendment. New Jersey's interest in "protecting its citizens from harmful or ineffective professional practices" trumps those protections.

The only remedy left for proponents of the therapy is an appeal to the U.S. Supreme Court, a path these groups declined to take when challenging California's ban.

This Is Speech, Not Conduct

Though the district court held that SOCE counseling was conduct, rather than speech, and therefore not protected by the First Amendment, the Third Circuit disagreed.

"[T]he verbal communication that occurs during SOCE counseling is speech that enjoys some degree of protection under the First Amendment," Judge D. Brooks Smith wrote. "Because Plaintiffs are speaking as state-licensed professionals within the confines of a professional relationship, however, this level of protection is diminished."

But It Is Professional Speech

Interestingly, while the Third Circuit's opinion borrows heavily from the Ninth Circuit's Pickup v. Brown opinion, it was careful to distance itself from any notion that SOCE therapy is conduct, rather than speech. Some, including judges dissenting from the Ninth Circuit's denial of en banc review in that case, and the district court here, have interpreted that opinion to hold just that -- SOCE therapy isn't speech.

What Pickup did right, according to the Third Circuit opinion, was to "recogniz[e] a 'continuum' of First Amendment protection for licensed professionals":

"Pickup held that First Amendment protection is 'at its greatest' when a professional is 'engaged in a public dialogue,'; 'somewhat diminished' when the professional is speaking 'within the confines of a professional relationship,'; and at its lowest when 'the regulation [is] of professional conduct ... even though such regulation may have an incidental effect on speech," (citations omitted)

Where's the line for the Third Circuit? When speech is "used to provide personalized services to a client based on the professional's expert knowledge and judgment," it receives lesser protection. Conversely, when a professional is "speaking to the public at large or offering her personal opinion to a client, her speech remains entitled to the full scope of protection afforded by the First Amendment."

The speech at issue here, SOCE therapy, fell into the former category, according to the court. And the state's interest in protecting its citizens from harmful therapy (as evidenced by a long list of studies cited by the legislature) trumps the reduced protections afforded professional speech.

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